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Friday, March 14, 2014

The Limitations of the U.N. Declaration on the Rights of Indigenous Peoples

Steven Newcomb

3/13/14

For
nations and peoples typically called “Indigenous,” 2014 will be an
important year in the international arena. This coming September, the
United Nations General Assembly is scheduled to convene a High Level
Plenary Meeting (HLPM) regarding the U.N. Declaration on the Rights of
Indigenous Peoples. Plans are underway, and the planned event is
generating considerable discussion, pro and con, amongst Indigenous
Peoples’ representatives.

According to a United Nations resolution, the HLPM is “to be known
as” a “World Conference on Indigenous Peoples.” This gives the mistaken
impression that it is a UN World Conference. It isn’t. A
genuine world conference is usually nine to ten days long, whereas the
U.N. High Level Plenary Meeting is going to be about 180 minutes long in
its entirety, over a two-day period in New York.

The idea for a UN HLPM was initiated by states, starting with the
government of Bolivia. The HLPM has been promoted as a gathering that
will work toward implementing the 46 Articles of the UN Declaration on
the Rights of Indigenous Peoples. Most importantly, the HLPM will be
used as an opportunity for the state governments of the world to draft
and adopt an “outcome document.” Evidently, the text of that document
will serve as a framework for states to “implement” the declaration.
However, while there may be some opportunity for a few Indigenous
representatives to make suggestions, Indigenous nations and peoples will
have no direct input in the drafting of the outcome document; its
contents and interpretation will be determined according to the
intentions and dominant prerogatives of states.

This top-down arrangement is entirely consistent with the
domination-subordination pattern that Professor Antheny Anghie, in his
bookImperialism, Sovereignty, and the Making of International Law,
has identified by studying the different eras of international law and
the international arena. The pattern is explicitly identified by
Professor James Crawford, a mentor of Anghies.

Professor Anghie makes one point in particular that our Indigenous
Nations and peoples should take to heart, specifically, that “colonial
confrontation was central to the formation of international law and, in
particular, its founding concept, sovereignty.” It is within this
formative imperial and colonial context of states and international law
that the U.N. Declaration on the Rights of Indigenous Peoples was
created and is now going to be interpreted by international states. That
also will be the context for whatever HLPM outcome document that states
end drafting and adopting.

There has been quite a lot of discussion to date about whether the
new U.N. General Assembly President John W. Ashe will seat an
“indigenous co-facilitator” for the HLPM. Based on a Jan. 28 meeting at
U.N. headquarters in New York we now know that Mr. Ashe has declined to
make such an appointment. Some lobbying effort by five Indigenous
representatives failed to get Mr. Ashe, who is from the British
Commonwealth country of Barbados, to change his mind. The U.N.
resolution that serves as the “modalities” framework for the HLPM does
not provide for an Indigenous co-facilitator, and this means that
according to U.N. rules Mr. Ashe has no mandate to make such an
appointment.The prospect of the HLPM comes down to one key question: What kind
of outcome document are state governments likely to produce? Indigenous
Nations and Peoples should pay particular attention to Article 46 of
the declaration. It is one of the most pro-state Articles. It gives
states an “out” by providing a rationale for limiting the ability of
Indigenous Nations and Peoples to exercise “the rights set forth” in the
declaration.

Indeed, Article 46 says very specifically that states may place
certain limitations on the “exercise of the rights set forth in this
Declaration.” However, that article also says that such limitations
shall be “determined by law” (does this mean both international law and
domestic state law, or perhaps both?) Such limitations may be imposed by
states “in accordance with international human rights obligations.”
Importantly, international state governments interpret “human rights” as
the rights of individuals within the context of “civil
society.” Article 46 also says that such “limitations” shall only come
into play when they are “strictly necessary solely for the purpose of
securing recognition and respect for the rights and freedoms of others.”
The word “others” refers to dominant non-Indigenous societies.

Stated differently, limitations on the exercise of the rights set
forth in the U.N. Declaration may be imposed by states in order to
‘secure’ “recognition for the rights and freedoms of ”…those defined as
non-Indigenous. There is another way of stating this: the exercise of
the rights set forth in the declaration shall only be limited if and
when states deem such limitations necessary to “secure” and “respect”
the rights and freedoms of a given non-Indigenous society.

Furthermore, such state-imposed limitations shall be placed on the
exercise of the rights enumerated in the U.N. Declaration when such
limitations are deemed by states to be necessary “for meeting the just
and most compelling requirements of a democratic society.” It is
anybody’s guess what the phrase “just and most compelling requirements
of a democratic society” means, or, for that matter, who shall decide
what that phrase means.

Interestingly, the word “requirements” in Article 46 of the
declaration brings to mind a notorious old Spanish ‘outcome document’
known as “the Requerimiento.” The Requerimiento was a document developed
by a Spanish Catholic theologian 500 hundred years ago. The Spanish
crown ordered it to be read to Indian villages by Spanish conquistadors.
The text was used as a means of communicating the claim to the free and
independent Indians that they were “required” to submit themselves to
the Spanish crown for just and compelling reasons—such as the biblical
creation story, and the chain of command that follows from it.

The main requirement the Indians were informed of, as supposedly
mandated by the white man’s Christian “God,” was to make themselves
meekly subservient to the imposed rule and authority of the pope and the
Catholic Church, to the Catholic monarchs, as well as to the
conquistadors who were serving as messengers and enforcers of King
Ferdinand and Queen Isabella. The Indians were informed that a failure
to submit would result in immediate death or enslavement, and, as those
who resisted quickly found out, the Spaniards were deadly serious.The Requiremento is but one historical example of the domination/subordination origins of what states now euphemistically call
“law” and “a democratic society,” relative to our Original Nations and
peoples and our traditional territories. The basis of “law” in the
Western European tradition has been defined as “the habit of obedience.”
Given that tradition, of one thing we can be certain: The States of the
world will craft and interpret the HLPM outcome document as a basis of
protecting, “for just and compelling reasons,” the dominating
prerogatives of states, against nations and peoples the international
system of states defines as “sub-order,” or “Indigenous.”Steven Newcomb (Shawnee, Lenape) has been studying U.S. federal Indian
law and international law since the early 1980s. He is co-founder and
co-direct of the Indigenous Law Institute, and author of Pagans in the
Promised Land: Decoding the Doctrine of Christian Discovery (2008,
Fulcrum). He has also published several law review articles.